21 Nov 2006: ISS Today: New Opportunities, New Challenges: The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of

21 November 2006: New Opportunities, New Challenges: The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill, 2006

As the private security sector continues to grow at an accelerated pace, it presents new and interesting opportunities not only for the South African economy but also for South African citizens and permanent residents. However, in its more sinister manifestation, mercenarism, it is in itself a threat to peace and security. On the positive side, South African citizens and permanent residents can now export their military and security related skills beyond the South African borders and benefit greatly from this risky but lucrative business. That said, there also exists a potential danger of these South African operatives engaging in unscrupulous behaviour in the form of mercenarism outside the South African borders. After all, they have the capacity and expertise to undertake such tasks, as they are mostly former members of the South African Defence Force. It must be recalled that the South African Army probably probably remains the most experienced in Africa. The coup plot against Equatorial Guinea, in which South Africans were involved, speaks volumes in terms of the potential danger that Africa faces as a result of the export of military and security related skills by South African operatives. The mercenary danger exists largely because of the absence of effective regulatory mechanisms.

In addressing the problem of the absence of effective regulatory mechanisms, South Africa’s latest attempt, the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill (the Bill), seeks to put in place mechanisms aimed at regulating the export of military services by its citizens and permanent residents. It remains to be seen whether the Bill will be effective, should it become part of the South African law. The Bill, however, raises some pertinent concerns, which are likely to affect adversely South African operatives already working abroad and those intending to do so in future. This article seeks to highlight some of the salient features of the Bill that will have a bearing on South African citizens, permanent residents and the South African-registered private military and companies.

The Bill seeks to repeal and replace the Regulation of Foreign Military Assistance Act of 1998, according to which the Memorandum on the Objects of the of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill, 2006 (the Memorandum), clearly states that “very few prosecutions have been instituted in terms of that Act [and] in most cases a conviction followed, only after a plea bargain was entered into between the prosecution and the accused.” This piece, however, does not seek to address the merits and demerits of this Act, which has been in operation for some time without any meaningful success in terms of regulating foreign military (PMC) assistance by South Africa nationals and permanent residents. Suffice it to say that the Act was a welcome initiative on the part of the South African government in addressing the problem associated with foreign military assistance by South African operatives.  

There is no doubt that the private security sector business is a lucrative one. With armed conflicts ravaging the world and in particular Africa, setting up a PMC or being recruited to one offers great opportunities, which South Africans have not failed to grasp. These opportunities come at a time when most South Africans, including so-called ‘white’ South African males generally have limited opportunities in the South African job market as a result of the implementation of the Employment Equity Act (EEA) and the so-called Black Economic Empowerment (BEE) drive which seek to address the imbalances of the past. The opportunities the private military and security business offer further address the frustrations of the so-called ‘white’ former members of South African Defence Force (SADF) who, after military transformation, had few other skills to ply than to those specific to the military and are consequently not given preferential treatment in the job market as was the case during apartheid.

Through this recent Bill, South Africa intends taking legislative measures to curtail unauthorized and opaque private security sector business operations and the recruitment of South African nationals and permanent residents outside the country’s borders. This is mainly as a result of the continuation in the recruitment of South Africans by Private Military Companies (PMCs) and Private Security Companies (PSCs) providing both military and security services in conflict zones. In mid-2004, it was estimated that there were some 1,500 the former SADF members in the private security sector operations in Iraq.

In a nutshell, the aim of the Bill is to do the following (s 2): - One, to prohibit mercenary activity; Two, to regulate the provisions of assistance or service of a military-related nature in a country of armed conflict; Three, to regulate the enlistment of South African citizens and permanent residents in other armed forces; Four, to regulate the provisions of humanitarian aid in a country of armed conflict; Five, to provide for extra-territorial jurisdiction for the courts of the Republic with regard top certain offences; Six, to provide for offences and penalties; and Lastly, to provide for matters connected therewith. The President is also empowered to proclaim a country as a regulated country in terms of which the Bill shall apply (s 6). More importantly, the Bill envisages an extra-territorial jurisdiction, wherein the South African courts are empowered to entertain cases involving offences committed outside South Africa by South African citizens and permanent residents, South African-registered or incorporated companies or any body of persons, corporate or unincorporated in South Africa. (s 11). These offences shall be deemed to have been committed within the South African borders.

The part of this legislation that seeks to end the exportation of both military and security skills by South African operatives deserves mention. In terms of section 3 of the Bill, certain conduct within the Republic and elsewhere is prohibited without the authorisation of the National Conventional Arms Control Committee (Committee) established in terms of the National Arms Control Act No. 41 of 2002 as follows: - One, negotiating or offering to provide any assistance or rendering any service to a party to an armed conflict or in a regulated country (s 3 (1) (a)); Two, the provision of any assistance by a person or rendering any service to a party to an armed conflict or in a regulated country (s 3 (1) (b)); Three, the recruitment, using, training, supporting any financing by any person to another provide assistance by rendering a service top party to an armed conflict or in a regulated country (s 3 (1) (c)); and Four, the recruitment, using, training or financing of any person to provide assistance or to render a service to a party to an armed or in a regulated country in accordance with an agreement or agreement (s 3 (1) (d)) ; and Lastly, the performance of any other act that has the result of furthering the military interests of a party to an armed conflict or in a regulated country (s 3 (1) (e)).  The Bill further prohibits both South African citizens and permanent residents from enlisting with any armed force, other than the Defence Force, including an armed force of a foreign state without the Committee’s authorisation.

There is an argument that the authorisation requirement infringes upon the right of every South African citizen to choose a trade, occupation or profession freely (s 22 of the SA Constitution). This right is, however, subject to regulation by law, depending on the circumstances and the nature of the activity involved. As the exportation of military and security services is not just like any other trade, occupation or profession, it is important for the South African law to regulate it, notwithstanding that it may be carried out outside the South African borders. Hence the intended authorisation requirement as envisaged in the Bill is in order. The question that remains is the practical implications for the authorisation mechanism. It is in this regard that South African government should put in place effective structures in order to safeguard the already existing jobs for South African operatives already working abroad and to avoid any panicking by private security and military companies in recruiting South Africans operatives because of the intended authorisation requirement. The authorisation process should therefore be a quick one and also ensure that no existing jobs are lost.   

The right to choose a trade, occupation or profession freely is also subject to the limitation clause (s 36 of the SA Constitution), which permits limitations provided that they are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. Again, any argument that the envisaged authorisation requirement is unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom cannot stand. It is no use for South Africa to advocate world peace and yet failing to regulate the exportation of military and security services within its own territory. The Bill, therefore, comes at an opportune time when South Africa is part of the UN Security Council, albeit on a non-permanent basis. The South African approach to mercenarism and the private security sector is a commendable one. 

Sabelo Gumedze, Defence Sector Programme, ISS Tshwane (Pretoria)